Commercial Newspaper Service, and its successors

Plain-English summary

Commercial Newspaper Service published athletic posters at a small Meridian, Idaho, facility. The company withdrew its contest to violations involving emergency exit lighting, flammable-liquid and combustible storage, lockout procedures, electrical equipment and wiring, and injury-recordkeeping, leaving only the penalties in dispute. The judge reclassified the exit-lighting item as other-than-serious because the expected harm was limited to cuts and bruises. He found that OSHA had overstated the company's size and failed to credit its good-faith safety consultation and abatement work begun before the inspection. The remaining serious items were low gravity, and the company had no prior OSHA violations. All items were affirmed, but the proposed penalties were reduced to $460 total.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.36(b)(6), 29 C.F.R. § 1910.106(d)(7)(iii), 29 C.F.R. § 1910.176(c), 29 C.F.R. § 1910.147(c)(1), 29 C.F.R. § 1910.303(g)(2)(ii), 29 C.F.R. § 1910.305(a)(2)(i), 29 C.F.R. § 1910.305(b)(2), 29 C.F.R. § 1904.2(a)
• Outcome: Modified. All violations were affirmed, the exit-lighting item was reclassified as other-than-serious, and total penalties were reduced to $460.
• Key point: Penalties must account for the employer's actual size, violation gravity, history, and documented good-faith efforts, including safety consultation and pre-inspection abatement.

Full text (OSHRC public release)

                                             United States of America
                    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                        1244 Speer Boulevard, Room 250
                                         Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Complainant,

                          v.                              OSHRC DOCKET NO. 00-1150

COMMERCIAL NEWSPAPER SERVICE, and
its successors,
Respondent.

APPEARANCES:

      For the Complainant:
               Jeannie Gorman, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, Washington

      For the Respondent:
               Charles W. Fawcett, Esq., Skinner Fawcett, Boise, Idaho

Before: Administrative Law Judge: Stanley M. Schwartz

                                         DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Commercial Newspaper Service, and its successors (Commercial), at all times
relevant to this action, maintained a place of business at 136 E. Idaho Street, Meridian, Idaho, where it
published athletic posters. Respondent admits it is an employer engaged in a business affecting
commerce and is subject to the requirements of the Act.
On May 18, 2000, following its receipt of a complaint, the Occupational Safety and Health
Administration (OSHA) conducted an inspection of Commercial’s Meridian work site. As a result of
that inspection, Commercial was issued citations alleging violations of the Act together with proposed
penalties. By filing a timely notice of contest Commercial brought this proceeding before the
Occupational Safety and Health Review Commission (Commission).
On November 7, 2000, an E-Z trial hearing was held in Boise, Idaho. At the hearing the parties
submitted a joint stipulation, in which Commercial withdrew its notice of contest to the violations
themselves. The parties agree that the sole issue in dispute is the appropriateness of the proposed
penalties. No briefs are required in E-Z proceedings, and this matter is ready for disposition.
 Alleged Violation of §1910.36(b)(6)
Serious citation 1, item 1 alleges:

29 CFR 1910.36(b)(6): Building(s) or structure(s) equipped for artificial illumination were not provided
with adequate and reliable illumination for all exit facilities:

    (A)     Storage Room: On 18 May 2000, and at times prior thereto, there was no illumination
    device provided for the means of egress.

    (B)     Pre-Press Room: On 18 May 2000, and at times prior thereto, there was no illumination
    device provided for the means of egress.

Facts
OSHA Compliance Officer (CO) Bill Bankhead testified that there was no emergency lighting in
two separate areas of Commercial’s basement, the storage room and the pre-press room (Tr. 17).
Bankhead stated that an employee attempting to exit the basement could become disoriented in the dark
and suffer cuts and/or bruises (Tr. 18). Bankhead stated that there was “limited” employee exposure to
the hazard and that the likelihood of an accident occurring was low (Tr. 18). Bankhead believed the
gravity of the violation was low.
Bankhead stated that he was told Commercial was a small employer, with approximately 60
employees at the Meridian site and 200 employees total (Tr. 75). However, Layton Denney,
Commercial’s production manager (Tr. 38-39), testified that there were only nine employees on the
Meridian site, four of whom had access to the storage and pre-press areas (Tr. 43). Mike Justice,
Meridian’s owner, testified that on May 18, 2000 Commercial had a total of 68 employees on the
payroll at all its work sites; Justice introduced documentary evidence corroborating his testimony (Tr.
59; Exh. R-1). Bankhead admitted that the figures presented at the hearing were more accurate than the
information he was given during the inspection (Tr. 80).
Layton Denney testified that Commercial had begun to address the safety and health issues cited
by OSHA before the OSHA inspection was instigated (Tr. 47). Denney stated that, as early as January
2000, Commercial began consulting with Boise State University’s Safety and Health Consultation
Program to identify safety concerns (Tr. 47-48; Exh. R-2, R-3). An inspection of Commercial’s work
site was made on April 3, 2000, and the consultant’s report was issued on April 10, 2000 (Tr. 48; Exh.
R-2). Prior to the OSHA inspection, Commercial began drafting a lock-out/tag-out program, and
issued a purchase order to an electrician to bring the electrical equipment into compliance with OSHA
standards (Tr. 48-50). Denney testified that by the time Commercial had its informal conference with
OSHA, all but one of the violations had been abated (Tr. 53). By the hearing date, all the violations
were abated (Tr. 54, 60). CO Bankhead testified that none of Commercial’s prior attempts to abate the
safety and health violations in its workplace were taken into account in his assessment of the proposed
penalties (Tr. 31-32).
It is undisputed that Commercial had no previous OSHA violations (Tr. 18, 59).
Discussion
In determining an appropriate penalty the Commission is required to give due consideration to
the size of the employer, the gravity of the violation and the employer's good faith and history of
previous violations. The gravity of the offense is the principle factor to be considered. Nacirema
Operating Co., 1 BNA OSHC 1001, 1972 CCH OSHD ¶15,032 (No. 4, 1972).
As a threshold matter, this judge notes that, according to §17k of the Act, a violation is
considered serious only if the violative condition or practice gives rise to a substantial probability of
death or serious physical harm. CO Bankhead testified that the probable injuries that would result from
Commercial’s failure to provide emergency illumination devices at the means of egress would be cuts
and bruises. Cuts and bruises are not “serious physical harm” as contemplated by the Act. Citation 1,
item 1 is, therefore, reclassified as “other than serious.” CO Bankhead, therefore, overstated the gravity
of the cited violation. In addition, he failed to take into account Commercial’s good faith efforts to
abate safety and health violations in their work place prior to the OSHA inspection. Finally, the CO was
misinformed as to the number of workers Commercial employed.
Taking into account the statutory factors, especially the mis-classification of this item, this judge
finds that no penalty should be assessed for this item.
Alleged Violations of §1910.106(d) and 176(c)
The alleged violations below have been grouped because they involve similar or related hazards that
may increase the potential for injury resulting from an accident.
Serious citation 1, item 2a alleges:
29 CFR 1910.106(d)(7)(iii): Open flames and smoking were permitted in flammable or combustible
liquid storage areas:

   (A)      Outdoor Secure Storage: On 18 May 2000, and at times prior thereto, employees were
   permitted to smoke cigarettes from a porch above a secure chemical storage area which contains
   a 55 gallon drum of Blanket Wash 405. The label on this flammable liquid directs it be kept
   away from flames, sparks, and heat.

   Serious citation 1, Item 2b alleges:

29 CFR 1910.176(c): Storage areas were not kept free from accumulation of materials that constituted
hazards from tripping, fire, explosion or pest harborage:

   (A)    Storage Room: On 18 May 2000, and at times prior thereto, numerous boxes of paper
   and other combustible material, such as but not limited to stacks of fiberboard, stored in this
   basement area increased the fire load and potential for a severe fire which would engulf the

entire building. Combustible material is stored approximately 12 inches away from incandescent
light bulbs.
Facts
CO Bankhead testified that the probability of an accident occurring was low, but in the event of
a fire, exposed employees would probably suffer smoke inhalation and/or burns, possibly resulting in
death (Tr. 23). As in the preceding item, employee exposure to the hazard was limited (Tr. 23).
Discussion
A penalty of $1,750.00 was proposed for this item. This item was properly classified as a
serious, but low gravity violation. However, as noted above, the CO failed to properly compute the
penalty, as he misapprehended Commercial’s size and failed to give any credit for Commercial’s good
faith.
Taking into account the appropriate factors, this judge finds that a penalty of $180.00 is
appropriate and will be assessed.
Alleged Violations of §1910.147(c)(1)
Serious citation 3 alleges:
29 CFR 1910.147(c)(1): The employer did not establish a program consisting of an energy control
procedure and employee training to ensure that before any employee performed any servicing or
maintenance on a machine or equipment where the unexpected energizing, start up or release of stored
energy could occur and cause injury, the machine or equipment would be isolated, and rendered
inoperative in accordance with 29 CFR 1910.147(c)(4):

     (A)     Establishment: On 18 May 2000, and at times prior thereto, the employer had not
     established a lock-out/tag-out program.

Facts
Bankhead testified that Commercial’s failure to implement a lock-out/tag-out program exposed
its employees to possible bruises, cuts and/or amputations from residual energy in the presses (Tr. 24-
25). Bankhead stated that the probability of an accident occurring was low because four of the five
presses were of the cord and plug type (Tr. 24).
Discussion
A penalty of $1,750.00 was also proposed for this item. This item was properly classified as a
serious, but low gravity violation. However, as noted above, the CO failed to take into account
Commercial’s actual size, or its good faith.
Taking into account the appropriate factors, this judge finds that a penalty of $180.00 is
appropriate and will be assessed.
Alleged Violations of §1910.303(g) and 305 et seq.
Serious citation 1, item 4a alleges:
29 CFR 1916.303(g)(2)(ii): Enclosures or guards for electric equipment in locations where it would be
exposed to physical damage were not arranged and of a strength to prevent such damage to the
equipment:

    (A) Storage Room: On 18 May 2000, and at times prior thereto, a bank of three incandescent
    light bulbs were not guarded to prevent damage, thus exposing, employees to an electrical
    hazard

    Serious citation 1, item 4b alleges:

29 CFR 1910.305(a)(2)(i): Temporary electrical power and lighting installations rated 600 volts,
nominal, or less were used for purposes other than those permitted in subparagraphs (a), (b) and (c) of
this paragraph:

    (A) Pre-Press Room: On 18 May 2000, and at times prior thereto, the employer used a
    flexible extension cord as temporary wiring for the Plate Exposure Machine's (model VF-F5D
    serial # 76103) timer and vacuum pump.

    Serious citation 1, item 4c alleges:

29 CFR 1910.305(b)(2): Pull boxes, junction boxes, and fittings were not provided with covers
approved for the purpose:

    (A)      Storage Room: On 18 May 2000, and at times prior thereto, five junction boxes housing
    live electrical conductors were not provided with covers, thus exposing employees to an
    electrical hazard.

Facts
CO Bankhead testified that the electrical hazards cited in items 4a through 4c exposed
employees to shocking injuries and/or burns (Tr. 27). Because the violations were in the basement,
there was, again, limited employee exposure to the hazard (Tr. 28).
Discussion
A penalty of $1,400.00 was also proposed for this item. This item was properly classified as a
serious, but low gravity violation. As discussed more fully above, the CO failed to take into account
Commercial’s actual size, or its good faith.
Taking into account the appropriate factors, this judge finds that a penalty of $100.00 is
appropriate and will be assessed.
Alleged Violations of §1904.2
Other than serious citation 2, item 1 alleges:
29 CFR 1904.2(a): A log of all recordable occupational injuries and illnesses, (OSHA Form No. 200 or
equivalent), was not maintained at the establishment:

   (A)    Establishment: On 18 May 2000, and at times prior thereto, the 1999 Log and Summary
   of Occupational Injuries and Illnesses (OSHA 200) was not available for inspection. The
   company has not maintained any OSHA 200 logs.

   No penalty was proposed for this item.

                                             ORDER

1. Citation 1, item 1, alleging violation of §1910.36(b)(6) is AFFIRMED as an “other than serious”
   violation, without penalty.
2. Serious citation 1, items 2a and 2b, alleging violations of §§1910.106(d)(7)(iii) and
   1910.176(c), respectively are AFFIRMED and a combined penalty of $180.00 is ASSESSED.
3. Serious citation 1, item 3, alleging violation of §1910.147(c)(1) is AFFIRMED and a penalty of
   $180.00 is ASSESSED.
4. Serious citation 1, items 4a, 4b and 4c, alleging violations of §§1910.303(g)(2)(ii),
   1910.305(a)(2)(i) and 1910.305(b)(2), respectively are AFFIRMED and a combined penalty of
   $100.00 is ASSESSED.
5. Other than serious citation 2, item 1, alleging violation of 1904.2(a) is AFFIRMED without
   penalty.

                                                               /s/
                                                   Stanley M. Schwartz
                                                   Judge, OSHRC
   

Dated: December 18, 2000